© C in a Circle - When Copyrights Go To Court
Once in a while, a songwriter will discover that a song he or she has written has been appropriated by another person or, more likely, that someone has taken his or her song and used it without getting the proper licenses.
By Gary Roth
Although most new songwriters (and many veteran ones) spend a lot of time worrying about having their creations stolen by someone else, the reality is that very few songs are pilfered. Given the volume of new songs being written every year, the percentage is so small as to be virtually non-existent.
As I’ve written previously, the way the copyright law works offers the best protection to a songwriter by giving him or her a copyright in the work as soon as it is fixed in a tangible medium of expression, such as on paper, CD, tape, etc. By getting the legal protection that early, the odds against someone else stealing your song and getting away with it are greatly in your favor.
However, once in a while, a songwriter will discover that a song he or she has written has been appropriated by another person or, more likely, that someone has taken his or her song and used it without getting the proper licenses, such as including it in a new work, making an unauthorized recording of it, placing it in a film, arranging it into another genre, or playing it at an unlicensed club. Since all of those activities are ones that a copyright owner has the right to control, those persons who do them without permission are, as the law calls them, copyright infringers.
If you discover that your copyright has been infringed, what can you do? First, remember that if you have assigned your song to a publisher, the publisher is the one to deal with the infringement, since it is the copyright owner. But if you haven’t transferred your copyright, my suggestion is to retain a lawyer who is experienced in litigating copyright cases, since often a knowledgeable attorney’s demand letter to the alleged infringer will end the matter. If it doesn’t, your lawyer will know what you can expect to gain from a lawsuit and what the costs will likely be as compared to what you may receive as damages. Bringing any lawsuit is, after all, an expensive proposition, and you need an expert in the field to give you all the facts before you decide to go that route.
That said, if you decide to take the person who you accuse of infringement to court, what general principles should you know to guide you? First, your song has to have been registered in the Copyright Office. Even though registration of your song doesn’t give you any greater legal protection than creation and fixation does, for all intents and purposes, you can’t use the courts to remedy an infringement until the work has been registered.
How long can you wait to bring a lawsuit? The Copyright Law provides that you can’t sue for infringement more than three years “after the claim accrued.” When does your infringement claim accrue? That usually depends upon the facts of your specific situation, but generally it is measured from the first time the song was infringed. Your attorney is the best source for guidance on whether you’ve met this Statute of Limitations.
Where do you go to court? Since copyright infringement is a tort (a civil wrong committed against another person or their property) under a federal law, the case is within the jurisdiction of a United States District Court, not a state court. Sometimes songwriters think they have a “copyright case” when they really are complaining about provisions of a contract that have not been fulfilled. If that is really the focus, a state court could hear the dispute. But if the issues you’ve raised really do arise under the Copyright Act, you would have to go to federal court.
What kind of compensation can you expect to receive if you win your lawsuit? The law allows for two different kinds of monetary rewards if you are successful in a copyright infringement suit. One is called “actual” damages and the other is “statutory” damages.
Actual damages are the specific amount of money that you, the infringed party, can prove you lost because of the infringement, plus any profits that the infringer made that are attributable to the infringement and are not computed as part of your actual damages. Sometimes it is difficult or impossible to prove your actual damages or the infringer’s profits, so the law allows you to select statutory damages instead. Those are a per-work amount that can range from a low of $750 to a high of $30,000, as the court (the judge, or possibly a jury) considers just. If the court decides that the infringement was willful, however, the upper end can go as high as $150,000. On the other hand, if the infringer proves that its infringement was totally innocent, the lower end can be knocked down to $200. In addition, whether you were to sue for actual or statutory damages, if you win, the court has the option of also reimbursing you for all of your costs in bringing the suit, including the fees you paid your lawyer, as long as they are reasonable.
As with any lawsuit, there are details that must be attended to and certain exceptions to the general principles I have mentioned. That is why you never should attempt to be your own lawyer in a case that could cost you a lot of money. But with this little background on what you can expect if you have to pursue your legal remedies, you will be better informed. Since the likelihood of you ever having to actually deal with them is remote, however, just write your songs and stop worrying.
Posted Feb 28, 2006
Fear can dampen or even stifle creativity. It took some time for me to get over my fear of being infringed upon. As a result, I have become a better writer and doors are opening up to me.
Excellent article Mr. Roth!
Once again, another pertinent, INFORMATIVE, and well written article!! :-)
Great article. I have been playing since the 2nd grade and am now almost 62. I bet there are 10,000 songs in my head that I have the time now to, hopefully, re-kindle. A good foundation to a good song is protection. Please remember our friends on the Mississippi Gulf Coast, too. Not much has changed since Katrina.
Wow! So if someone infringed upon my copyright more than 3 years ago I’m just out of luck? Seems unfair since a songwriter might not find out about the infringement until many years later.
Great article, by the way. Many thanks!
Thanks so much for this article. Someone ripped off one of my songs last year & he’s making BIG bucks from it. I don’t have the money now to sue, but now that I know that I have til 2010, there is hope. Perhaps I can get the money to pay a lawyer by then. In the meantime, if anyone knows a lawyer who would work pro bono, they could make BIG bucks on the back end when the publishing company decides to settle, or when I win. The guy who ripped off my song wrote one for one of the biggest act in music today & it’s a big hit. He knows my producer, he recorded at my studio & his Myspace page has been linked up with mine for years, so I can easily prove he has had easy access to my music. I had my song copyrighted in 2005 & he did his in 2007, so I have good proof, mine came first. Thanks.
Can anyone tell me where to find a listing of music attorneys in Portland,OR or even Kennewick,WA?